concurring.
I agree that 16 U.S.C. § 1379(a) does not preclude the State from restricting access to or from prohibiting the discharge of firearms on State land. In other words, the State has not been preempted from acting because of the federal statute. On this basis, I concur in the result.
I see no need for this court to address the issue of whether were preemption found, section 1379(a) would be unconstitutional as a taking without just compensation. I express no opinion regarding that issue.
RABINOWITZ, J.,concurring.
Although I agree with Justice Shortell’s dissenting conclusion that the Marine Mammal Protection Act preempts Alaska’s regulations which prohibit entry onto Round Island without a permit and prohibit the discharge of firearms on Round Island, I concur in the result reached by the court. By preventing the State of Alaska from excluding hunters from its property, the Act effects an uncompensated taking in violation of the Fifth Amendment of the United States Constitution.
The Act evidences a clear intent to preempt the type of state regulation at issue in this case. Section 1379(a) announces that *159“[n]o State may enforce ... any State law or regulation relating to the taking of any species ... of marine mammal.” The United States Supreme Court has indicated that such “relating to” language in preemption clauses need not be read broadly. In California Division of Labor Standards v. Dillingham Construction, — U.S. —, 117 S.Ct. 832, 136 L.Ed.2d 791 (1997), the Court refused to displace a state law on the basis of an identical provision. A separate concurring opinion suggests that in practice, “relating to” language only requires ordinary field and conflict preemption analysis. Id. at —, 117 S.Ct. at 843, 136 L.Ed.2d at 806
(Sealia, J.,concurring).
Here, however, even an application of the established preemption tests would require preemption of state regulations. Alaska regulation 5 AAC 92.066(2)(D) prohibits the “discharge of firearms, disturbance or harassment of wildlife, removal of wildlife or parts of wildlife” on the Round Island sanctuary. The regulation governs the taking of marine mammals, a field which the Act is intended to occupy. In addition to its express preemption provision, the Act creates a comprehensive regulatory system of the sort that assumes an absence of competing rules. See §§ 1371, 1373, 1374, 1381, and 1383. Therefore, a field preemption analysis would require the invalidation of the regulation under which the Arnariaks were charged. See Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984) (citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)).
The court’s opinion and the dissent quote contradictory legislative history as to the intended effect of the Act. In my opinion the most revealing history is found in the House of Representative’s section-by-section analysis of the original bill. The report directs:
If the U.S. activities are impaired by reason of a failure to own the necessary lands or interests therein, the Secretary must thereupon suspend the program and notify the Congress, recommending such additional legislation is [sic] deemed necessary.
H.R.Rep. No. 92-707, at 29 (1971), reprinted in 1972 U.S.C.C.A.N. 4144,4161.
This passage indicates Congress was aware of the Act’s possible constitutional infirmity. Unsure of whether the proposed legislation would run afoul of Fifth Amendment property rights, Congress apparently chose to move forward and let the issue be resolved in the courts. The question we are faced with in this case is not whether the Act was intended to apply to land owned by others; rather, it is whether such an extension constitutes an uncompensated taking.
I agree with the court that a federal denial of the state’s right to exclude hunters from its game sanctuary would be a taking. Since section 1379(a) requires the State of Alaska to permit access to and the discharge of firearms on Round Island without compensation, I conclude that the Act is unconstitutional.
The United States Supreme Court has rejected takings challenges to laws that require owners who open their land to the public to admit other private persons. See e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258-61, 85 S.Ct. 348, 358-60, 13 L.Ed.2d 258 (1964) (rejecting takings challenge to Title II of 1964 Civil Rights Act). With one exception, though, the Supreme Court has only sustained requirements of admission for persons who enter with the same purpose for which the owner admits other members of the public. The cases have all involved prohibitions on discrimination among entrants. They do not suggest a landowner may be made to suffer an entry such as that made by the Arnariaks, whose entry was unrelated to the state’s reasons for opening its property.
The one exception to this rale is Prune-Yard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980). There the Supreme Court held that a state may force private shopping malls to allow pamphleteers to operate on their premises. Although the mall at issue was open only “for the purpose of encouraging the patronizing of its commercial establishments,” and it did not allow expressive activity, the Court found the access requirement did not constitute a taking. Id. at 77, 100 S.Ct. at 2038.
*160As this court’s opinion points out, entry was allowed in PruneYard under a set of conditions that distinguish the present case. Op. at 156-157 n. 2. The most important condition was that the shopping mall was allowed to impose its own time, place, and manner restrictions, to guarantee that the entry did not interfere with its land use objectives. PruneYard, 447 U.S. at 83-84, 100 S.Ct. at 2041 — 42.
This condition is critical. The Arnariaks contend that Native hunting does not interfere with species preservation, and that federal regulation will meet the state’s objectives. However, even under PruneYard, the State retains the right to determine for itself when, where, and how hunting may be conducted. As the landowner, it may act on its own to ensure that subsistence taking will not interfere with its preservationist goals. Furthermore, since the state may regulate “place,” it may bar hunting in some places. Just as the mall owners in PruneYard were able to restrict pamphleteers to common areas, so too should Alaska be allowed to keep hunters out of its game sanctuaries.1
In short, I conclude that the Marine Mammal Protection Act preempts the State of Alaska hunting regulations under which the Arnariaks were charged. Although statutes and regulations must be construed when possible to avoid constitutional infirmity, “[hjere the intention of the Congress is revealed too distinctly to permit us to ignore it because of mere misgivings as to power.” Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 478, 77 S.Ct. 923, 932, 1 L.Ed.2d 972 (1957) (Frankfurter, J., dissenting) (quoting Hopkins Federal Sav. & Loan Ass’n v. Cleary, 296 U.S. 315, 335, 56 S.Ct. 235, 240, 80 L.Ed. 251 (1935)). However, I further conclude that as such, the Marine Mammal Protection Act violates the Fifth Amendment of the United States Constitution. Even under a liberal reading of the Supreme Court’s takings cases, the fact that Alaska permits tourists to enter Round Island to shoot pictures does not allow Congress to require Alaska to permit others to enter to shoot walrus.
. Although PruneYard. does not mention this as a basis for decision, it would appear that the Supreme Court’s holding was influenced by free speech concerns. In many suburban areas, private shopping centers have displaced traditional fora for expressive activity. See id. at 90, 100 S.Ct. at 2045 (Marshall, J., concurring). Prune-Yard in effect allowed limited public duties to be imposed on a private entity that had displaced public institutions. Cf. Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). The fact that the Supreme Court has never allowed separate-purpose private entry elsewhere suggests that PruneYard 's exception to traditional limits on governmental power can be limited to such circumstances.